Government Negligence Per Se Requires a Mandatory Statutory Duty Protecting a Particular Class

Introduction

This wrongful-death action arose after pilot Chelsea Brittney Infanger’s Cessna collided with exhaust stacks at Gem State Processing near the approach to Runway 20 at Burley Municipal Airport. The stacks had previously been identified as a possible collision hazard and intruded into the runway’s obstacle-clearance surface.

Ms. Infanger’s parents and estate sued several public and private entities. After settling with the other defendants, they continued their claims against the Idaho Department of Transportation’s Division of Aeronautics. They alleged that the Division negligently failed to regulate the stacks under Idaho’s Airport Zoning Act and inaccurately recorded their height during an airport inspection performed for the Federal Aviation Administration.

The central question was whether those statutory, regulatory, inspection, and contractual responsibilities created a tort duty owed specifically to Ms. Infanger. In answering that question, the Court materially reformulated Idaho’s public-duty rule.

Summary of the Opinion

The Supreme Court unanimously affirmed summary judgment for the Division. It held that none of the Infangers’ theories established an actionable duty of care:

• The Airport Zoning Act did not impose mandatory governmental acts for the protection of a particular class rather than the public generally.
• The Division’s failure to regulate was nonfeasance, not affirmative conduct creating or increasing the hazard.
• No duty to protect arose because the Division lacked custody or control over Ms. Infanger.
• A special-relationship duty to control Gem State was not preserved below.
• An assumed-duty theory based on the FAA inspection contract was also not preserved, while the record did not establish Ms. Infanger as an intended third-party beneficiary.

The Court nevertheless rejected the Division’s request for appellate attorney fees because the Infangers’ claims had reasonable bases in fact and law. The Division received costs as the prevailing party.

The New Rule: A Simplified Public-Duty Test

The principal precedent is the Court’s reformulation of the public-duty rule at the first step of the Idaho Tort Claims Act analysis. When negligence per se is asserted against a government entity, a court must first ask:

Whether the statute or ordinance sets forth mandatory acts clearly intended to protect a particular class of persons rather than the public as a whole.

Only if that threshold is satisfied may the court proceed to the ordinary negligence-per-se analysis. Actual governmental knowledge, private reliance, and whether the government increased the danger are no longer separate elements of Idaho’s public-duty inquiry. The Court expressly reduced the four factors associated with Rees to this single statutory question and overruled Rees to the extent it was inconsistent.

Analysis

1. Idaho Tort Claims Act Framework

Drawing on Harris v. State, Dep’t of Health & Welfare, the Court described the Idaho Tort Claims Act analysis as involving three steps:

1. Determine whether Idaho tort law would recognize liability under analogous private circumstances.
2. Determine whether an Idaho Tort Claims Act exception preserves governmental immunity.
3. Determine whether the merits and evidentiary record warrant judgment.

This case ended at step one because the Infangers could not establish a tort duty. The Court therefore did not decide whether the discretionary-function exception or another immunity provision would independently bar recovery.

2. The Airport Zoning Act Did Not Create an Actionable Duty

The Infangers relied principally on Idaho Code section 21-520, which allows the Division’s director to seek an injunction compelling the marking, lighting, or other designation of an obstruction. The Court identified two defects.

First, the statute states that the director “may” seek an injunction. Under Scott Beckstead Real Est. Co. v. City of Preston, “may” ordinarily denotes discretion, not a mandatory obligation. The statute also did not authorize the Division to prevent construction of the stacks or compel their removal.

Second, the Airport Zoning Act protects broad public interests—including airport users, nearby land occupants, aircraft, public investment, and the general welfare. It does not clearly single out pilots or another narrowly defined class as the beneficiaries of mandatory governmental action.

The Act therefore resembles the broadly protective fire statute considered in GSN Cap., LLC v. Shoshone City & Rural Fire Dist., rather than the child-specific statutory protections involved in Rees v. Dep’t of Health & Welfare.

3. Negligence Per Se and the Public-Duty Rule Are Distinct Inquiries

Under Nation v. State, Dep’t of Corr. and Sanchez v. Galey, ordinary negligence per se requires:

1. A statute clearly defining the required conduct;
2. An intent to prevent the type of harm suffered;
3. A plaintiff within the protected class; and
4. Proximate causation.

The district court focused on whether the Airport Zoning Act clearly defined a standard of conduct. The Supreme Court held that this began the analysis too late. When the defendant is a governmental entity, the public-duty rule must first establish that the government owed a particularized statutory duty. Because the Airport Zoning Act failed that threshold, the ordinary Sanchez elements never became dispositive.

4. No Common-Law Duty Based on Affirmative Conduct

Under Whitt v. Jarnagin, a person must use reasonable care not to injure others through affirmative conduct. But the Infangers alleged that the Division failed to regulate or mitigate a danger created by Gem State. That was nonfeasance—failure to act—rather than misfeasance—affirmative conduct creating a risk.

Consistent with Coghlan v. Beta Theta Pi Fraternity and Udy v. Custer County, foreseeable harm alone does not generally impose an affirmative duty to rescue or protect. The Infangers identified no action by the Division that created or increased the danger posed by the stacks.

5. No Special-Relationship Duty

The Court distinguished two special-relationship theories:

• Duty to control: A duty arising from the defendant’s right and ability to control a dangerous third party.
• Duty to protect: A duty arising when the defendant has custody or control over the plaintiff and the plaintiff consequently depends on the defendant for safety.

The duty-to-control theory was not preserved. The pleadings and summary-judgment arguments focused on statutory and regulatory responsibilities, not a special relationship between the Division and Gem State. Idaho’s notice-pleading rules did not excuse the failure because the allegations did not reasonably alert the Division to that theory.

The duty-to-protect theory failed on the merits. Applying GSN Cap., LLC v. Shoshone City & Rural Fire Dist. and Spears v. Antelope Mountain Resort, LLC, the Court found no custody or control. The Division did not possess Ms. Infanger, her aircraft, or practical authority over her physical safety. She had not been deprived of her normal ability to protect herself.

6. The FAA Inspection Contract

The Division conducted a 2020 airport inspection for the FAA and reportedly recorded the stacks as 70 feet tall, although they were likely more than 100 feet tall. The FAA allegedly incorporated that figure into information supplied to pilots.

The district court construed the claim as alleging that Ms. Infanger was a third-party beneficiary of the FAA–Division contract. It found no evidence that the contracting parties intended pilots such as Ms. Infanger to possess enforceable contractual rights.

On appeal, the Infangers characterized the contract as supporting an assumed-duty tort theory. The Supreme Court declined to consider that theory because it had not been clearly presented below. Under Choice Feed, Inc. v. Montierth and State v. Miramontes, appellate courts generally will not decide a new theory that the opposing party had no fair opportunity to contest in the trial court.

Precedents Cited

Public Duty and Governmental Liability

• Harris v. State, Dep’t of Health & Welfare supplied the three-step Idaho Tort Claims Act framework.
• Sterling v. Bloom established that step one asks whether a private person would be liable under like circumstances. Its unrelated holdings were later overruled by Shubert v. Ada County.
• GSN Cap., LLC v. Shoshone City & Rural Fire Dist. treated statutory protection of life and property as a duty to the public generally, not a particularized tort duty. It was the principal foundation for the new threshold test.
• Rees v. Dep’t of Health & Welfare recognized a duty to competently investigate a particular report of child abuse because the statute protected an identified child and the agency knew of the danger. The present decision narrows and partially overrules its four-factor public-duty analysis.
• Radke v. County of Freeborn provided the original four factors adopted in Rees. The Court retained only its statutory-construction factor.
• Est. of McFarlin v. State and Hunt ex rel. Hasty v. N.C. Dep’t of Labor were cited as comparable applications of the public-duty doctrine to failures to enforce safety regulations or conduct inspections.

Negligence and Affirmative Duties

• Nation v. State, Dep’t of Corr. and Sanchez v. Galey supplied Idaho’s four-part negligence-per-se test.
• Dreyer v. Idaho Dep’t of Health & Welfare illustrated a statute creating a concrete duty to report witnessed abuse.
• Whitt v. Jarnagin stated the general duty to exercise ordinary care in one’s affirmative conduct.
• Coghlan v. Beta Theta Pi Fraternity and Udy v. Custer County reinforced the general absence of liability for failing to act unless unusual circumstances create an affirmative duty.

Special Relationships

• Turpen v. Granieri and Beers v. Corp. of President of Church of Jesus Christ of Latter-Day Saints explained that a duty to control requires a foreseeable risk plus the right and ability to control the third party.
• Merritt ex rel. Merritt v. State explained that a duty to protect may arise when a person relinquishes ordinary self-protection and depends on another for safety.
• GSN Cap., LLC v. Shoshone City & Rural Fire Dist. made custody and control threshold requirements before considering the policy factors from Rife v. Long.
• Spears v. Antelope Mountain Resort, LLC illustrated relationships involving sufficient dependence, such as an airline’s relationship with flight attendants or a mine operator’s relationship with miners.

Preservation and Pleading

• Choice Feed, Inc. v. Montierth and Obenchain v. McAlvain Constr. Inc. limited appellate review to theories and arguments presented below.
• Estes v. Barry required a theory of liability to have support in the pleadings.
• Cook v. Skyline Corp., Straley v. Idaho Nuclear Corp., and Brown v. City of Pocatello explained Idaho’s notice-pleading standard: a complaint need not name every legal theory, but its facts must reasonably notify the opposing party of the claim.
• State v. Miramontes emphasized that preservation permits meaningful adjudication and gives the opposing party a fair opportunity to develop evidence and argument.

Summary Judgment and Attorney Fees

• Berg v. Fairman described summary judgment as eliminating unnecessary trials where undisputed facts produce a certain legal conclusion.
• Fragnella v. Petrovich required reasonable inferences to favor the nonmovant while rejecting a mere scintilla of evidence as insufficient.
• Coeur D’Alene Tribe v. Denney equated the attorney-fee standard under Idaho Code section 12-117 with the frivolousness standard under section 12-121.
• C & G, Inc. v. Rule established that fairly debatable claims are not frivolous or without foundation.

Complex Concepts Simplified

Public-duty rule

A government obligation owed to everyone generally cannot ordinarily be enforced by one person through a damages action.

Negligence per se

A statute may supply the legal standard of reasonable care. Against the government, however, the statute must first mandate action for a particular protected class.

Misfeasance and nonfeasance

Misfeasance means acting in a way that creates a risk; nonfeasance means failing to intervene in a risk created elsewhere. The common law more readily imposes liability for misfeasance.

Special relationship

A relationship involving sufficient custody, control, or dependence to justify requiring one party to protect another or control a dangerous third person.

Assumed duty

A person who voluntarily undertakes a service may be required to perform it with reasonable care. The Court did not decide whether such a duty existed because the theory was not preserved.

Third-party beneficiary

A nonparty may enforce a contract only when the contracting parties intended to give that person enforceable benefits, not merely an incidental advantage.

Potential Impact

The decision makes statutory negligence claims against Idaho government entities more difficult. Plaintiffs must identify mandatory statutory language and a clearly defined protected class before litigating the ordinary elements of negligence per se.

Broad public-safety statutes—especially those using discretionary terms such as “may”—will rarely create individual tort duties. Failures in inspection, licensing, zoning, or enforcement will generally remain matters for administrative or political correction unless the legislature expressly directs mandatory protection toward a particular class.

The opinion also reinforces strict preservation requirements. Plaintiffs relying on assumed duties, third-party control, or contractual undertakings must clearly plead and argue those theories in the trial court.

Conclusion

Infanger establishes that a governmental negligence-per-se claim cannot rest merely on a public agency’s authority to address a known danger. The governing statute must require specific governmental action and must clearly protect a particular class rather than the public generally.

Although the fatal accident may have been preventable, the Airport Zoning Act, common law, special-relationship doctrine, and FAA inspection contract did not establish an actionable duty owed by the Division to Ms. Infanger. Summary judgment was therefore affirmed, while attorney fees were denied because the family’s arguments remained reasonably grounded and fairly debatable.